Potts v. Flax Brief for Appellees

    I n  the

United ^tata (Eourt of Apjipala
F or the F ifth Circuit 

No. 19,639

W . S. P otts, et al.,

—v.

A rlene F lax, et al.,

Appellants,

Appellees.

appeal from the united states district court for the
NORTHERN DISTRICT OF TEXAS

BRIEF FOR APPELLEES

L. Clifford Davis
403 East 9th Street 
Fort Worth, Texas

W. J. D urham
Universal Life Building 
2600 Flora Street 
P. 0. Box 641 
Dallas, Texas

Jack Greenberg
James M. Nabrit, III
Derrick A . B ell, J r .

10 Columbus Circle 
New York 19, New York

Attorneys for Appellees



I N D E X

Statement of the Case.....................................................  1

A rgument :

I. Appellees were not required to exhaust the 
administrative remedy provided by either 
Texas Law or School Board Regulations 
prior to invoking the jurisdiction of the 
court below.....................................................  7

II. The Court granted appropriate relief for 
plaintiffs and others similarly situated in 
ordering the defendants to submit a plan 
of desegregation for the Fort Worth school 
system .............................................................  14

III. The District Court properly declined to con­
vene a three-judge Court under 28 United 
States Code Section 2281 ..............................  17

IV. Neither the plaintiffs’ motives in bringing
the suit or the fact that others are aiding 
plaintiffs in the expenses of litigation are 
relevant .........................................................  21

Conclusion .....................................................................  23

A ppendix :

Article 2901a ...........................................................  la

Article 2900a...........................................................  6a

PAGE



11

Table of Cases
PAGE

Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark.
1959), aff’d sub nom. Faubus v. Aaron, 361 U. S.
197 ................................................................................  20

Atkins v. School Board of City of Newport News,
148 F. Supp. 430 (E. D. Va. 1957), aff’d 247 F. 2d 
325 (4th Cir. 1957) .....................................................  18

Bailey v. Patterson, 369 U. S. 31, 7 L. ed. 2d 512
(1962) .........................................................................  20

Beale v. Holcomb, 193 F. 2d 384 (5th Cir. 1951) .......  17
Borders v. Rippy, 247 F. 2d 268 (5th Cir. 1957) .......  16, 20
Boson v. Rippy, 275 F. 2d 850 (5th Cir. 1960) ........... 15
Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) ............. 10,19
Braxton v. Board of Public Instruction of Duval 

County, Fla., unreported order of March 1, 1961 
(S. D. Fla., No. 4598-Civ-J), mandamus and prohi­
bition denied, sub nom. Board of Public Instruc­
tion of Duval County, Fla. v. Hon. Bryan Simpson,
366 U. S. 957, 6 L. ed. 2d 1267, 81 S. Ct. 1944 (1961) 21

Brown v. Board of Education, 347 U. S. 483
(1954) ........................................................... 5,7,9,12,14,22

Brown v. Board of Education, 349 U. S. 294 .......7, 9,11, 22
Burnes v. Scott, 117 U. S. 582, 29 L. ed. 991, 6 S. Ct.

865 (1886).........................................    22
Bush v. Orleans Parish School Board, 138 F. Supp.

336, 138 F. Supp. 337 (E. D. La. 1956), aff’d 242
F. 2d 156 (5th Cir. 1957) ..........................................  18

Bush v. Orleans Parish School Board, 187 F. Supp.
42, 188 F. Supp. 916 (E. D. La. 1960), aff’d 365
U. S. 569.........................................    20

Bush v. Orleans Parish School Board, 242 F. 2d 156 
(5th Cir. 1957) 16



I l l

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956).......  8,12
City of Newport News v. Atkins, 246 F. 2d 325 (4th

Cir. 1957) ................................. ..................................  13
Cleveland v. United States, 323 U. S. 329, 65 S. Ct.

280, 89 L. ed. 274 (1945) .......................................... 19
Cooper v. Aaron, 358 U. S. 1 (1958) ................. 7,11,12, 22

Dodson v. School Board of the City of Charlottes­
ville, 289 F. 2d 439 (4th Cir. 1961) ..........................  10

Doremus v. Board of Education, 342 U. S. 429, 96
L. ed. 475, 72 S. Ct. 394 (1952)..................................  21

Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) .......  12

Evers v. Dwyer, 358 U. S. 202, 3 L. ed. 2d 222, 79
S. Ct. 178 (1958) ........................................................  22

Ex parte Bransford, 310 U. S. 354, 84 L. ed. 1249,
60 S. Ct. 947 (1940) ...................................................  18

Ex parte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 L. ed.
990 (1938)......................... ..........................................  19

Farley v. Turner, 281 F. 2d 131 (4th Cir. 1961) ......... 9
Foremost Promotions v. Pabst Brewing Co., 15 

F. R. D. 128, 19 F. R. Serv. 26b.31, Case No. 4 
(N. D. 111. 1953) .........................................................  22

German v. South Carolina State Port Authority,
295 F. 2d 491 (4th Cir. 1961) ..................................  18

Gibson v. Board of Public Instruction of Dade
County, Florida, 272 F. 2d 763 (5th Cir. 1959) .....8, 9,10,

15, 20
Green v. School Board of the City of Roanoke,------

F. 2 d ------  (4th Cir., No. 8534, May 22, 1962) .......  10,15

Hall v. St. Helena Parish School Board, 197 F. Supp.
649 (E. D. Va. 1961), aff’d 368 U. S. 515, 7 L. ed. 2d 
521 (1962) ..................................................................... 20

PAGE



IV

Hill V. School Board of City of Norfolk, 282 F. 2d 473
(4th Cir. 1960) ...........................................................  10

Idlewild Bon Voyage Liquor Corp. v. Epstein, 30 
U. S. L. Week 4599 (June 25, 1962) ........................  19

Idlewild Bon Voyage Liquor Corp. v. Rohan, 289 
F. 2d 426 (2nd Cir. 1961) .......................................... 19

James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959) 20
Jones v. School Board of the City of Alexandria, Va.,

278 F. 2d 72 (4th Cir. 1960) ...................................... 9,15

Lane v. Wilson, 307 U. S. 268 (1939) ..........................  12

Mannings v. Board of Public Instruction, 277 F. 2d 
370 (5th Cir. 1960) ....................................8, 9,10,15, 20, 21

Mapp v. Board of Education of the City of Chatta­
nooga, 295 F. 2d 617 (6th Cir. 1961) ....................... 14

Marsh v. County School Board of Roanoke County,
------  F. 2d ------  (4th Cir., No. 8535, June 12,
1962) .........................................................................10,15,16

NAACP v. Patty, 159 F. Supp. 503 (E. D. Va. 1958), 
vacated on other grounds, sub nom. Harrison v. 
NAACP, 360 U. S. 167, 3 L. ed. 2d 1152, 79 S. Ct.
1025 ..............................................................................  21

Northcross v. Board of Education of the City of
Memphis, ------  F. 2d ------  (6th Cir., No. 14642,
March 23, 1962), cert, denied 30 U. S. Law Week 
3398 (June 25, 1962) ..............................................10,15,16

Orleans Parish School Board v. Bush, 242 F. 2d 156 
(5th Cir. 1957) .............................................................  13,14

PAGE

Plessy v. Ferguson, 163 U. S. 537 (1896) 11



y

R.R. Comm, of Texas v. Pullman Co., 312 U. S. 496,
85 L. ed. 97, 61 S. Ct. 643 (1941) ..............................  12

School Board of the City of Newport News v. Atkins,
246 F. 2d 325 (4th Cir. 1957) .................................... 17

Shuttlesworth v. Birmingham Board of Education,
358 U. S. 101 (1958), aff’g 162 F. Supp. 372 (N. D.
Ala. 1958) .....................................................................8, 9,17

Stark v. Brannan, 82 F. Supp. 614 (D. C. Cir. 1949), 
aff’d 185 F. 2d 871 (D. C. Cir. 1950), aff’d 342
U. S. 451, 96 L. ed. 497, 72 S. Ct. 433 (1952) ........... 22

Stratton v. St. Louis, Southwestern R. Co., 282 U. S.
10, 75 L. ed. 135, 51 S. Ct. 8 (1930) ..........................  18,19

Stuart v. Wilson, 282 F. 2d 539 (5th Cir. 1960) .......  18

Turner v. Memphis, ------  U. S. ------ , 7 L. ed. 762
(1962) ..........................................................................  20

Wheeler v. Denver, 229 U. S. 342, 57 L. ed. 1219,
33 S. Ct. 842 (1913) ...................................................

Wichita Falls Junior College District v. Battle, 204 
F. 2d 632 (5th Cir. 1953) ..........................................

Young v. Higbee Co., 324 U. S. 204, 89 L. ed. 890,

PAGE

65 S. Ct. 594 (1945) ...................................................  22

Federal Statutes Involved

Federal Rules of Civil Procedure, Rule 23(a)(3) .... 15
United States Code, Title 28, Section 1331................... 1

United States Code, Title 28, Section 1343(3)............. 1

United States Code, Title 28, Section 2281 ...............17,19, 20

United States Code, Title 42, Section 1981................... 1

United States Code, Title 42, Section 1983 ................... 1

22

17



I n  t h e

llttttrii States (Emtrt of Appeals
F or  t h e  F i f t h  C i r c u i t  

No. 19,639

W .  S. P o t t s , et al.,
Appellants,

—v.—

A r l e n e  F l a x , et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE  
NORTHERN DISTRICT OF TEXAS

BRIEF FOR APPELLEES

Statement of the Case

An amended complaint was filed in this action on No­
vember 30, 1959, in the United States District Court for the 
Northern District of Texas by plaintiffs Weirless Flax, Sr. 
and Herbert C. Teal on behalf of their minor children (R. 
1). The defendants are W. S. Potts, President of the Board 
of Trustees of the Fort Worth Independent School District, 
the Trustees, the School District itself as a corporation, its 
superintendent and the principals of the two schools where 
plaintiffs’ children were denied admission. Jurisdiction was 
invoked under 28 U. S. C. §1331 and §1343(3) and 42 U. S. C. 
§1981 and §1983 (R. 2-3).

Based on allegations that the defendants operate the 
Fort Worth public schools on a dual racial system, plain­
tiffs seek relief for themselves and all other Negroes simi­
larly situated against defendants’ policies which require



2

minor plaintiffs to attend racially segregated schools. The 
defendants on November 19, 1959 filed a Motion to Dismiss 
and their Answer (R. 16, 21) which, in summary, denied 
that plaintiffs had been assigned on the basis of race, but 
had been assigned to schools “designed to best serve their 
educational needs” (R. 22). In a lengthy “ Additional An­
swer” (R. 28), defendants maintain that their dual racial 
system, followed for more than 78 years, “has become a 
fundamental part of the educational process in Fort Worth” 
(R. 29) and that a change to an integrated system “ could 
only lead to confusion, chaos, and a complete breakdown 
of the public school system . . . ” (R. 29). Moreover, defen­
dants referred to state statutory provisions which in the 
event of integration would severely penalize the school sys­
tem and its personnel (R. 31). Finally, defendants maintain 
that plaintiffs failed to pursue administrative procedures 
provided for transfer to any other school, which proce­
dures established by state statute provide adequate reme­
dies for the recognition of plaintiffs’ rights (R. 33).

Prior to trial on April 3, 1962, defendants took the plain­
tiffs’ depositions in February 1960 (R. 35), obtained a con­
tinuance of the trial in May 1961 (R. 41), based on the ill­
ness of the School Superintendent and filed on November 
7, 1961, a motion to assemble a 3-judge court which was 
refused by the district court (R. 53).

The testimony and exhibits introduced at the trial of this 
case on November 8, 1961 (R. 69), entirely support the 
finding of the court below that appellant School Board has 
continued to operate a dual racial system of compulsory 
public schools in the Fort Worth Independent School 
District.

Succinctly, the public schools in the Fort Worth Inde­
pendent School District for 78 years have been operated 
under a dual system requiring Negro pupils to attend 
schools operated exclusively for Negro pupils and white



3

children to attend schools operated for whites (R. 28-29, 
108). This policy remains in effect, and the appellant Board 
has no plans to change it (R. 109, 111, 232).

The dual racial system is a fundamental part of the edu­
cational process in Fort Worth (R. 29) and, according to 
school officials, both white and colored teachers are best 
suited by experience, training and habit to the teaching of 
children of their respective races (R. 226). Appellant mem­
bers of the Board of Trustees and the executive personnel 
of the School District’s administrative staff testified at the 
trial of their conviction that the dual system, segregated 
on the basis of racial color and operated under the doctrine 
of separate but equal teaching and facilities, was the plan 
best suited to the schools under their jurisdiction (R. 158, 
181, 226). This conviction, which the court below found 
appellants held in good faith (R. 60), was reinforced by a 
study of the desegregation question made over a period of 
seven years by the Superintendent and other members of 
the administrative staff (R. 185).

The dual system in the Fort Worth schools is made up 
of two classes of schools with reference to race. Negro 
pupils are restricted to Negro schools and white pupils are 
restricted to schools for whites (R, 107-108). Children are 
assigned to schools in accordance with a dual set of zone 
maps based on race (R. 121). The Fort Worth schools 
serve about 59,062 white pupils and 13,836 Negro children, 
Negroes comprising about 18.9% of the total (R. 202). 
During the enrollment period at the beginning of the 1959 
Fall Term, Weirless Flax, an Air Force Sergeant (R. 74) 
and a Negro (R. 72), presented his 6 year old daughter, 
Arlene, for admission to the Burton-Hill Elementary School 
(R. 73), which school is restricted entirely to white pupils 
(R. 221-222). The Principal of that school said he had in­
structions from the school board not to enroll Negro chil­



4

dren in the school, and refused to permit the Flax child 
to enroll there (R. 74). She was required to enroll in the 
Como Elementary School (R. 75), which school is restricted 
entirely to Negro children (R. 100).

Appellee Flax lives in an apartment building on the 
Carswell Air Force Base (R. 71) 1%  miles from the Burton- 
Hill School (R. 126) and about 5 miles from the Como 
School (R. 127). White children living in the same apart­
ment building on the Carswell Air Force Base as the Flax 
child who were presented for enrollment at the Burton- 
Hill School under similar conditions and during the same 
period in which Arlene Flax was rejected, were accepted 
(R. 81).

In similar fashion, appellee Herbert C. Teal, a Negro 
resident of Texas (R. 87), presented his six children during 
the enrollment period at the beginning of the 1959 Fall 
Term for enrollment in the Peter Smith Elementary School 
located only 7 blocks from his home (R. 87, 91), which 
school is limited to white children (R. 99, 100). The Princi­
pal of that school, acting under instructions of his superiors, 
refused to admit the Teal children because they were Ne­
groes (R. 90), and they were required to enroll in the all- 
Negro George Washington Carver Elementary School (R. 
99, 100), located in another geographical school area two 
miles further from their home than the Peter Smith School 
(R. 92). Previously, appellee Teal had attempted to regis­
ter his children in the Peter Smith School at the beginning 
of the terms in 1956 (R. 87) and 1957 (R. 89, 98), but was 
refused on both occasions.

On these facts, appellees brought this suit without making 
an effort either to follow the transfer procedure adopted by 
the Board in 1948 (R. 129-131), or to use the administrative 
remedies set forth in Article 2901a, Texas Civil Statutes, 
the provisions of which law are set forth in the appendix



5

to appellees’ brief. Boai-d officials admit that unless the 
Boai’d abandons the dual system policy, they will have no 
authoi'ity to grant such transfer requests (B. 135, 136).

Both appellees testified that they sought and obtained aid 
from the NAACP in bi’inging this suit (R. 78, 96), and not­
withstanding some confusion on the part of one of the 
parents (R. 101), the court below found that allegations in 
the complaint were sufficient to properly designate the suit 
as a class action (R. 58).

The appellant Potts, President of the Board of Educa­
tion, stated as his belief that the dual system is “ for the 
best interest of all the children” (R. 148), and thinks that 
both the Board members and 95% of the people are in 
accord with this view (R. 148, 167). To suppoi’t this posi­
tion, the Board President quoted figures intended to show 
the progress Negro pupils have made in the system since 
1955 when they were 2.04 years behind the average white 
child by the time they reached the sixth grade (R. 151). 
By 1960, after the Board equalized Negro teachers’ salaries 
and standards (R. 194, 200) and improved Negro school 
facilities (R. 195-200), Negro children were 1.40 years be­
hind the white children in the sixth grade (R. 201).

The Board President stated as his contention that the 
Brown case does not mean that the dual system can no 
longer be maintained in the schools (R. 154). He said that 
the Board was defending this suit aimed at abolishing the 
dual system because Texas law (Article 2900a, Texas Civil 
Statutes) requires it and voluntary desegregation would 
mean a loss of the state appropriation, would subject the 
school officials to fines and imprisonment and would cost 
the school system its accreditation (R. 145-146). He ad­
mitted, however, that the Board has made no effort in the 
state coui't to determine the validity of the Texas law (R.



6

160), and lias not sought an opinion from the State Attorney 
General on its validity (R. 184).

Because the Board feels that segregated schools are best 
for their system, in part, because “ Negro teachers are far 
better able to teach Negro pupils and white teachers better 
able to teach white pupils” (R. 158), the Board has taken 
no action on any desegregation plan (R. 232).

At the conclusion of the trial, the court below entered 
appropriate findings of fact (R. 58-64), and concluded that 
the dual system for white and colored students in the Fort 
Worth public schools violates the rights of the minor plain­
tiffs and all eligible Negro pupils (R. 65). The court found, 
moreover, that the biracial policy was so firmly fixed and 
maintained with so much conviction that “ there is no rea­
sonable probability within the foreseeable future of a vol­
untary change” in the segregation policy (R. 61). For this 
reason, the trial court concluded that it would have been 
futile for the plaintiffs to exhaust the administrative pro­
cedures under Article 2901a of the Texas Civil Statutes. 
And since these procedures were not required of white 
children similarly qualified, the trial court found that pro­
cedures are in themselves a violation of the constitutional 
rights of plaintiffs and the class they represent (R. 65). 
The trial court also found that Article 2901a, when construed 
in connection with Article 2900a, Texas Civil Statutes, if 
not invalid on its face, does, as applied by the Fort Worth 
School Board, violate the Federal Constitution (R. 65-66).

Finally, the court on December 14, 1961, ordered the 
appellants to submit within 30 days after the judgment 
became final “a plan for effectuating with all deliberate 
speed a transition to a racially nondiscriminatory school 
system beginning with the 1962 Fall School Term”, and 
retained jurisdiction during such period of transition to 
insure compliance (R. 66).



7

Defendants filed a motion for new trial on December 22, 
1961 (R. 254), in which objections were raised to the judg­
ment, the findings of fact, and the court below’s failure to 
require plaintiffs both to exhaust their administrative reme­
dies, and obtain from the state courts a determination of 
the constitutionality of the Texas law. The trial court 
denied this motion on March 1, 1962 (R. 268), and on the 
same date issued an opinion setting forth the basis for his 
judgment in this case (R. 268).

From this judgment, appellants appeal to this Court (R. 
294).

A R G U M E N T

I
Appellees were not required to exhaust the adminis­

trative remedy provided by either Texas Law or School 
Board Regulations prior to invoking the jurisdiction of 
the court below.

Appellees, Negro citizens of the United States and 
residents of Fort Worth, Texas, brought this suit on be­
half of their children, and all members of the class simi­
larly situated, to enjoin compulsory racial segregation in 
public schools under the jurisdiction of the Fort Worth 
Independent School District, and to secure compliance with 
the Supreme Court’s decisions holding such segregation 
unconstitutional. Brown v. Board of Education, 347 U. S. 
483 (1954), 349 U. S. 294 (1955); Cooper v. Aaron, 358 
U. S. 1 (1958).

The appellants, notwithstanding deep convictions con­
cerning the superiority of their dual school system, from 
which statements the court below concluded “ that there 
is no reasonable probability within the foreseeable future



8

of a voluntary change in the defendant’s policy as to 
racial segregation” (R. 61), nevertheless strongly contend 
in specification of errors 1, 2, 3, 4, and 11 (appellants’ 
brief, pp. 2-4) that the court below should not have en­
tered its order without requiring appellees to exhaust their 
administrative remedies.

It is appellants’ contention that because the complaint 
does not allege that plaintiffs have sought individual re­
assignments to particular schools by fully pursuing the 
administrative procedures provided by the Fort Worth 
Independent School District, or those provided by the 
Texas pupil assignment law (Section 7, Article 2901a, 
Vernon’s Annotated Civil Statutes), the plaintiffs are not 
entitled to any relief in this action.

In support of this argument defendants rely principally 
upon Shuttlesworth v. Birmingham Board of Education, 
358 U. S. 101 (1958), affirming on “ limited grounds” 162 
F. Supp. 373, 384 (N. D. Ala. 1958), and the decision by 
the Court of Appeals for the Fourth Circuit in Carson v. 
Warlick, 238 F. 2d 724 (4th Cir. 1956).

It is submitted that the appellants’ argument is clearly 
without merit, and has been plainly rejected by this Court 
in cases decided subsequent to those mentioned above. 
Mannings v. Board of Public Instruction, 277 F. 2d 370 
(5th Cir. 1960); Gibson v. Board of Public Instruction, 
272 F. 2d 763 (5th Cir. 1959).

In the Mannings case the Court stated the issue presented 
in the following manner (277 F. 2d at 372):

. . . Are the plaintiffs, in a class action in a school 
segregation case, denied the right to have the trial 
court enjoin a local board of education from con­
tinuing to operate the local school system on a racially 
segregated basis, solely because the individual plain­



9

tiffs have not exhausted administrative remedies made 
available to them to seek admission to certain desig­
nated schools?

The Court decided the issue against the school board in 
that case, concluding (277 F. 2d at 373):

Thus it is clear that the plaintiffs were not deprived 
of their right to litigate over the basic question of 
desegregation of the public school system, because of 
their failure to apply for entry into specified schools.

The Court went on to observe that the plaintiffs were 
entitled to “ the protection of a court order making certain 
that the factor of race would not be a consideration in 
the solution of [the] . . . many intangible tests” of the 
pupil assignment law if they could sustain the allegations 
of the complaint (277 F. 2d at 375).

The decision in the Shuttlesivorth case, supra, does not 
support the argument that the existence of the pupil as­
signment law is in itself a plan of desegregation or a 
“ reasonable start toward full compliance” with the Su­
preme Court’s decisions in Brown v. Board of Education, 
347 U. S. 483 (1954); 349 U. S. 294 (1955). The author 
of that opinion (Judge Rives) made this plain in Gibson 
v. Board of Public Instruction, 272 F. 2d 763, 766 (5th 
Cir. 1959).

Subsequent to Mannings, the Fourth Circuit specifically 
expressed its agreement with that decision, Farley v. 
Turner, 281 F. 2d 131, 132 (4th Cir. 1961); and has fre­
quently indicated its disposition to appraise the validity 
of a school system’s general procedures for the assignment 
of pupils as distinct from the problems related to the as­
signment of particular plaintiffs. Jones v. School Board 
of the City of Alexandria, 278 F. 2d 72, 76-77 (4th Cir.



10

1960); Hill v. School Board of the City of Norfolk, 282 
F. 2d 473 (4th Cir. 1960); Dodson v. School Board of City 
of Charlottesville, 289 F. 2d 439 (4th Cir. 1961). Recently, 
the Fourth Circuit has apparently drawn even closer to 
Mannings and Gibson. In Marsh v. County School Board
of Roanoke County, ------  F. 2d ------  (4th Cir., No. 8535,
June 12, 1962), the Court said:

Because the initial school assignments are made on a 
racial basis, full compliance by the plaintiffs with 
the transfer procedures cannot repair the discrimina­
tions to which they have been and are subjected. In 
view of the initial assignment system, the administra­
tive procedures for transfer are, for the most part, 
applied to Negroes seeking a desegregated education 
and not to whites similarly situated. To insist, as a 
prerequisite to granting relief against discriminatory 
practices, that the plaintiffs first pass through the very 
procedures that are discriminatory would be to require 
an exercise in futility.

See also, Green v. School Board of the City of Roanoke, 
------F. 2 d -------  (4th Cir., No. 8534, May 22, 1962).

The Sixth Circuit in Northcross v. Board of Education
of City of Memphis,------ F. 2 d -------- (6th Cir., No. 14642,
March 23,1962) cert, denied 30 U. S. Law Week 3398 (June 
25, 1962), saying that the Tennessee pupil assignment law 
“ might serve some purpose in the administration of a school 
system but it will not serve as a plan to convert a biracial 
system into a nonracial one” , did not require the exhaustion 
of administrative procedures provided by the act prior to 
reversing a lower court’s refusal to grant injunctive relief 
to restrain the operation of a biracial school system.

In Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960), this 
Court had prior occasion to review a Texas case involving



11

the adequacy and validity of plans for desegregation of a 
school system without reference to the applications of indi­
vidual plaintiffs for admission to named schools. The 
Court indicated its familiarity with the statute relied upon 
by appellants (discussing it in another connection at 285 
F. 2d 43, 48-50), but nevertheless proceeded to require that 
a desegregation plan be implemented in Dallas, Texas.

Under the principles set forth in Brown v. Board of 
Education, 349 U. S. 294 (1955) and Cooper v. Aaron, 358 
U. S. 1 (1958), it is the duty of the courts in school desegre­
gation cases to require local school authorities who are 
maintaining segregation to develop arrangements for elimi­
nating segregation as soon as practicable, and to require 
them to “ devote every effort toward initiating desegrega­
tion and bringing about the elimination of racial discrimina­
tion . . . ” (358 U. S. at 7).

Clearly, these rules should apply with special force here 
where appellants have not abandoned their dual school 
system, and indeed contend that such policy may be in­
definitely maintained without violating the constitutional 
rights of appellees.

The School Board asserts in Specification of Error No. 9 
that it does not rely on the separate-but-equal doctrine of 
Plessy v. Ferguson, 163 U. S. 537 (1896), and objects to 
the trial court’s statement that (R. 283):

They attempted to justify their dual system under the 
separate-but-equal doctrine formerly recognized by 
Plessy v. Ferguson, 163 U. S. 537, as if it had never 
been rejected by the Brown case.

Even if we accept the Board’s statement that the evi­
dence concerning school construction for Negro and white 
schools and equal salaries for Negro and white teachers



12

and other evidence of like character was offered to show 
“upgrading [of] the quality of education of students, both 
white and colored” (Appellants’ Brief p. 34), this affords 
no ground for reversing the trial court’s judgment. Defen­
dants are admittedly continuing the segregated dual system. 
Under Brown v. Board of Education, 347 U. S. 483 (1954), 
and Cooper v. Aaron, 358 U. S. 1 (1958), this is inde­
fensible.

The Board argues that the district court should have 
stayed the proceedings pending state court determination 
of applicable state law issues, presumably referring to the 
Pupil Assignment Law (Appellants’ Brief pp. 18-19). The 
argument is really that the plaintiffs should be required 
to exhaust both the administrative remedies under the 
statute and the state judicial remedies {Ibid.). However, 
it is settled that exhaustion of state judicial remedies is 
not a prerequisite to the grant of injunctive relief by fed­
eral courts in school segregation cases. Carson v. Warticle, 
238 F. 2d 724, 729 (4th Cir. 1956); Lane v. Wilson, 307 U. S. 
268 (1939); Dove v. Parham, 282 F. 2d 256, 262 (8th Cir. 
1960). The School Board’s reliance upon R.R. Comm, of 
Texas v. Pullman Co., 312 U. S. 496, 85 L. ed. 97, 61 S. Ct. 
643 (1941), is plainly misplaced for this case does not call 
for the interpretation of any state statute, for an injunc­
tion against an ambiguous state law, or for any preliminary 
guess as to the applicable state law. As indicated above, 
the principal issue before the court was factual, namely, 
whether the School Board continued to maintain a system 
of assigning pupils to schools on the basis of race in dis­
regard of Brown v. Board of Education, supra.

Finally, defendants contend in specification of error No. 
11 (Appellants’ Brief, p. 35) that there was no basis for 
the trial court’s finding that the school authorities would 
not voluntarily abandon their dual school policy (R. 60-



13

61), and that therefore exhaustion of the administrative 
procedures was futile (R. 64). But based on the testimony 
of appellant school officials, particularly the Chairman of 
the Board, the trial court could have reached no other con­
clusion.

The Board, the Chairman testified (R. 158), defends 
against this suit to abolish the dual system on two main 
grounds: (1) Texas law requires such defense and penalizes 
voluntary abandonment of the dual system by subjecting 
school personnel to fines and imprisonment, and depriving 
the school system of its accreditation; (2) it is the honest 
conviction of the Board that the dual system will provide 
the best education for both Negro and white pupils. On 
such testimony the court below reasoned that exhaustion 
of the administrative procedures could provide no adequate 
remedy to appellees because of the fixed and definite policy 
of the school authorities with respect to segregation and 
because the provisions of Article 2900a, Texas Revised 
Civil Statutes provide severe penalties upon any voluntary 
departure from the dual policy. The court compared the 
situation in this case with that in Virginia where the 
Fourth Circuit reached a similar conclusion in City of New­
port News v. Atkins, 246 F. 2d 325, 326 (4th Cir. 1957).

Moreover, even if the appellants were to change their 
fixed policy and ignore Article 2900a upon reviewing ap­
pellees’ individual transfer applications, even the granting 
of such transfer requests could not provide appellees with 
their requested relief, i.e., reorganization of the dual sys­
tem on a unitary basis, since the pupil assignment pro­
cedures are limited to the consideration of individual pupil 
transfer requests. Orleans Parish School Board v. Bush, 
242 F. 2d 156, 162 (5th Cir. 1957).



14

II

The Court granted appropriate relief for plaintiffs and 
others similarly situated in ordering the defendants to 
submit a plan of desegregation for the Fort Worth 
school system.

In Specification of Errors Nos. 5 and 7 defendants argue 
that the court erred by ordering that “ every7 colored child 
in Fort Worth should be permitted to enter any white 
school of his choice” , and in considering the case as a class 
action (Appellants’ Brief p. 29).

Appellees submit that the order of the court below was 
plainly proper. The order merely required that the defen­
dants submit to the court a plan of desegregation consis­
tent with the Brown decision. The defendants’ description 
of the judgment is plainly fanciful, as a simple reading of 
the judgment will demonstrate (R. 251-253).

The record conclusively demonstrates that the Fort 
Worth school system is operated on a completely racially 
segregated basis. The School Board has never denied this. 
No “good faith” belief of school officials that maintenance 
of the dual system is in “ the best interest of all the chil­
dren” (R. 148) is a defense to plaintiffs’ claim for relief. 
The Supreme Court has held that “ in the field of public 
education the doctrine of ‘separate-but-equal’ has no place.” 
Brown v. Board of Education, 347 U. S. 483, 495. This 
Court has faithfully followed Brown from the start. 
Orleans Parish School Board v. Bush, 242 F. 2d 156 (5th 
Cir. 1957).

The School Board has not complied with Brown by merely 
making a study of desegregation problems, Mapp v. Board 
of Education of the City of Chattanooga, 295 F. 2d 617 
(6th Cir. 1961), nor does the existence of a pupil assign­



15

ment law, without more, constitute a desegregation plan. 
Gibson v. Board of Public Instruction, 272 F. 2d 763, 766 
(5th Cir. 1959). The practice of assigning pupils to schools 
on the basis of separate Negro and white school zones has 
been repeatedly and unequivocally condemned as uncon­
stitutional. Jones v. School Board of the City of Alexan­
dria, Va., 278 F. 2d 72 (4th Cir. 1960); Marsh v. County
School Board of Roanoke County, Va.,------ F. 2d -------  (4th
Cir. No. 8535, June 12, 1962); Green v. School Board of
City of Roanoke, Va.,------  F. 2 d ------  (4th Cir. No. 8534,
May 22,1962); Northcross v. Board of Education of City of
Memphis,------F. 2 d -------- (6th Cir. No. 14,642, March 23,
1962), cert, denied 30 U. S. Law Week 3398 (June 25, 1962).

Thus, there can be no doubt that in view of the Board’s 
failure to discontinue the dual system based on race, the 
order of the court below is appropriate. Boson v. Rippy, 
275 F. 2d 850, 853 (5th Cir. 1960); Gibson v. Board of 
Public Instruction, supra; Mannings v. Board of Picblic 
Instruction, supra.

The opinion of the court below adequately deals with the 
defendants’ objection to treating the case as a class action, 
including the argument with reference to one of the par­
ents’ testimony that he was bringing the suit only for his 
own children. See the opinion below (R. 275-281).

The procedural aspects of the class action issue pose no 
difficulty, for it is really the substantive issue as to what 
relief may be granted that is really in dispute. The case 
comes within Rule 23(a)(3), Federal Rules of Civil Pro­
cedure, in that it involves a numerous class of persons (all 
Negro pupils in the system); it is obviously impracticable 
to bring them all before the court; and they are represented 
by “ one or more members of the class.” The case involves 
“ several” rights with common questions of law and fact 
and a request for a common relief for all members of the



16

class, namely, an injunction against the system of segre­
gation. The court below found that:

The case was fairly and aggressively prosecuted. 
There was no indication that the plaintiffs were at­
tempting to make a collusive sacrifice of the right of 
other Negro school children. What in reality would 
a mere direct statement by Flax that he was prose­
cuting the suit for all the Negro children in the Fort 
Worth school district have added to this record[?] 

The type of action brought by the plaintiffs, ordi­
nary pleadings and the evidence as a whole, justify 
the court in determining in his discretion that the case 
should be treated as a class action. Even if that deci­
sion were incorrect, the defendants suffered no injury, 
in view of the nature of relief to which plaintiffs were 
entitled and the type of judgment entered (R. 280- 
281).

It is well known that numerous school segregation cases 
like this one have been litigated as class actions under 
Rule 23(a)(3). See Bush v. Orleans Parish School Board, 
242 F. 2d 156, 165 (5th Cir. 1957); Borders v. Rippy, 247 
F. 2d 268 (5th Cir. 1957); Northcross v. Board of Educa­
tion of City of Memphis, supra; Marsh v. County School
Board of Roanoke County, V a.,------ F. 2 d -------- (4th Cir.
No. 8535, June 12, 1962).



17

111

The District Court properly declined to convene a 
three-judge Court under 28 United States Code Section 
2281.

The appellant School Board’s claim that the district judge 
erred in refusing to convene a three-judge court is not 
supported by any citation of authority. The Board merely 
asserts that the judgment “ effectively held the Texas 
Statutes, Article 2900a and Article 2901a . . . [and the local 
School Board’s transfer rules] to be invalid” (Appellants’ 
Brief p. 26, Specification of Error No. 6).

The District Court stated four grounds for its refusal 
to convene a three-judge court, none of which has been 
answered in appellants’ brief (R. 273-274). The Court held 
that no three-judge court was required in that:

1. There was no request for an injunction enjoining 
Articles 2900a and 2901a, relying upon School Board of 
the City of Newport News v. Atkins, 246 F. 2d 325, 327 
(4th Cir. 1957).

2. The complaint sought relief against a school board’s 
policy of racial discrimination and this presented merely 
a factual issue—thus three judges were not required even 
though the policy originated in a state law, relying on 
Beale v. Holcomb, 193 F. 2d 384 (5th Cir. 1951), and Wichita 
Falls Junior College District v. Battle, 204 F. 2d 632 (5th 
Cir. 1953).

3. The unconstitutional application of the laws made it 
unnecessary to pass on the validity of the laws themselves, 
see Shuttlesworth v. Birmingham Board of Education, 162 
F. Supp. 372 (N. 1). Ala. 1958), aff’d 358 U. S. 101 (1958),



18

and Ex parte Bransford, 310 U. S. 354, 84 L. ed. 1249, 60 
S. Ct. 947 (1940).

4. Even if the validity of Articles 2900a and 2901a is 
necessarily before the court, three judges were not neces­
sary because the laws are patently and manifestly uncon­
stitutional, citing Atkins v. School Board of City of Newport 
News, 148 F. Supp. 430 (E. D. Va. 1957), aff’d 247 F. 2d 325 
(4th Cir. 1957), and Bush v. Orleans Parish School Board, 
138 F. Supp. 336; 138 F. Supp. 337 (E. D. La. 1956), aff’d 
242 F. 2d 156 (5th Cir. 1957).

Initially, it must be observed that the School Board has 
not pursued the correct remedy to challenge the district 
judge’s refusal to convene a court of three judges. The 
Board’s remedy, if any, is by application for a writ of 
mandamus, rather than by an appeal, as the Supreme Court 
plainly held in Stratton v. St. Louis, Southwestern R. Co., 
282 U. S. 10, 15-16, 75 L. ed. 135, 51 S. Ct. 8 (1930). The 
Court held in Stratton that if a single district judge im­
properly granted an injunction where three judges should 
have been convened, no appeal would lie either to the 
Supreme Court or to the Court of Appeals, and that the 
only remedy was an application for a writ of mandamus. 
The Stratton case apparently has continued vitality despite 
the reluctance of appeals courts to apply it strictly.1 See

1 Various appeals court decisions sustaining appellate jurisdiction 
on the three-judge court issue, where district judges have dismissed 
complaints on the ground of lack of a substantiality of the federal 
question, are at least formally distinguishable. Such decisions in­
clude this Court’s opinion in Stuart v. Wilson, 282 F. 2d 539 (5th 
Cir. 1960), and other cases collected in German v. South Carolina 
State Port Authority, 295 F. 2d 491, 493-494 (4th Cir. 1961). Those 
cases, unlike the instant case, did not involve attempting appellate 
review of single judge opinions granting injunctive relief or refus­
ing relief on grounds other than lack of substantiality of the con­
stitutional question.



19

Idlewild Bon Voyage Liquor Cory. v. Rohan, 289 F. 2d 
426, 429 (2nd Cir. 1961), where the court dismissed an 
appeal for lack of jurisdiction, though stating a strong 
view that three judges should have been convened. When 
the District Court again refused to call three judges, the 
Supreme Court reviewed the case and held that the District 
Court should have done so. The Supreme Court implicitly 
approved the Second Circuit’s determination that it lacked 
jurisdiction to reverse the refusal to convene three judges, 
though it observed that Stratton did not deprive circuit 
courts of all power to guide district courts in such matters. 
Idlewild Bon Voyage Liquor Gory. v. Eystein, 30 U. S. L. 
Week 4599 (June 25, 1962).

Assuming arguendo that this Court has jurisdiction to 
review appellants’ contentions, they are, nevertheless, with­
out merit. That there would be no need for a three- 
judge court to invalidate the local School Board’s trans­
fer rules is plain since §2281 applies only to statewide 
laws of general applicability and does not even include 
municipal ordinances or state laws having only local ap­
plication. Ex yarte Collins, 277 U. S. 565, 48 S. Ct. 585, 
72 L. ed. 990 (1938); Cleveland v. United States, 323 U. S. 
329, 332, 65 S. Ct. 280, 89 L. ed. 274 (1945). Actually, the 
court below merely held the transfer procedures were an 
inadequate remedy in light of the dual system of schools 
based on race.

The District Court’s conclusion that Article 2900a 
presents no substantial federal question is plainly correct 
under prior decisions of this Court. This law7, which for­
bids school authorities to desegregate schools unless the 
electors of a district authorize it in an election, has been 
repeatedly disregarded by this Court in cases similar to 
this. See Boson v. Riyyy, 285 F. 2d 43, 45, note 11 (5th 
Cir. 1960) and cases collected therein. Indeed, the appel­



20

lants attempt no real defense of this law in their brief. 
The Board apparently acknowledges that Article 2900a 
affords it no defense (see appellants’ brief, pp. 23-24).

The Supreme Court recently stated that §2281 does not 
require a three-judge court when “ prior decisions make 
frivolous any claim that a state statute on its face is not 
unconstitutional.” Bailey v. Patterson, 369 U. S. 31, 7 L. ed.
2d 512, 514 (1962). See also, Turner v. Memphis, ------
U. S .------ , 7 L. ed. 2d 762 (1962). Any claim that Article
2900a can validly relieve the school authorities’ obligation 
to desegregate public schools or prevent court enforcement 
of this duty, is frivolous in light of Borders v. Rippy, 
supra, and the other cases cited therein. Indeed, laws 
of this genre have been uniformly held invalid. See James 
v. Almond, 170 F. Supp. 331 (E. D. Va. 1959); Aaron v. 
McKinley, 173 F. Supp. 944 (E. D. Ark. 1959), aff’d 
sub nom. Faubus v. Aaron, 361 U. S. 197; Bush v. Orleans 
Parish School Board, 187 F. Supp. 42, 188 F. Supp. 916 
(E. D. La. 1960), aff’d 365 U. S. 569; Hall v. St, Helena 
Parish School Board, 197 F. Supp. 649 (E. D. La. 1961), 
aff’d 368 U. S. 515, 7 L. ed. 2d 521 (1962).

The argument that a three-judge court is required be­
cause the defendants have invoked the Texas Pupil As­
signment Law (Article 2901a) is equally insubstantial. 
This Court’s decisions in Mannings v. Board of Public 
Instruction, 277 F. 2d 370 (5th Cir. 1960), and Gibson v. 
Board of Public Instruction, 272 F. 2d 763 (5th Cir. 1959), 
make it plain that the discriminatory administration of a 
Pupil Assignment Law, such as the making of initial 
assignments on the basis of race under a segregated dual- 
racial system, can justify an injunction against the segre­
gated system irrespective of the apparent validity of an 
assignment law on its face. Any lingering doubts as to



21

the validity of this position were resolved by the United 
States Supreme Court in June 1961, when it rejected an 
argument which attacked the Mannings doctrine and was 
similar to that made by the Board here. See Braxton v. 
Board of Public Instruction of Duval County, Fla., un­
reported order of March 1, 1961, refusing a three-judge 
court (S. D. Fla., No. 4598-Civ-J), mandamus and prohibi­
tion denied, sub nom. Board of Public Instruction of Duval 
County, Fla. v. Hon. Bryan Simpson, 366 U. S. 957, 6 
L. ed. 2d 1267, 81 S. Ct. 1944 (1961).

IV

Neither the plaintiffs’ motives in bringing the suit or 
the fact that others are aiding plaintiffs in the expenses 
of litigation are relevant.

The Board’s argument in connection with Specification of 
Error No. 8 consists almost entirely of excerpts from the 
transcript relating to one of the plaintiffs’ statements that 
he received aid in the present lawsuit from the National 
Association for the Advancement of Colored People.2 The 
Board has made no argument and cited no cases to estab­
lish the relevance of this testimony to the merits of the 
case.

It has been repeatedly held that a litigant’s motives in 
bringing an action to protect his rights are irrelevant if 
the facts bring him within the jurisdiction of the court. 
Doremus v. Board of Education, 342 U. S. 429, 434, 435,

2 For a judicial description of the activities of the N. A . A . C. P. 
and the N. A . A. C. P. Legal Defense & Educational Fund, Inc., 
see Judge Soper's opinion in N. A. A. C. P. v. Patty, 159 F. Supp. 
503 (E. D. Va. 1958), vacated on ground of equitable abstention 
sub nom. Harrison v. N. A. A. C. P., 360 U. S. 167, 3 L. ed. 2d 
1152, 79 S. Ct. 1025.



22

96 L. ed. 475, 72 S. Ct. 394 (1952); Young v. Higbee Co., 
324 U. S. 204, 214, 89 L. ed. 890, 65 S. Ct. 594 (1945); 
Wheeler v. Denver, 229 U. S. 342, 351, 57 L. ed. 1219, 33
S. Ct. 842 (1913); Evers v. Dwyer, 358 U. S. 202, 204, 3 
L. ed. 2d 222, 79 S. Ct. 178 (1958). The fact that others may 
pay the expenses of litigation does not impair a party’s 
standing, Wheeler v. Denver, supra, nor would even a 
claim of champerty be relevant or an available defense on 
the merits, Burnes v. Scott, 117 U. S. 582, 589-591, 29 L. ed. 
991, 6 S. Ct. 865 (1886); Stark v. Brannan, 82 F. Supp. 614, 
616, 617 (D. C. Cir. 1949), aff’d 185 F. 2d 871, 873 (D. C. 
Cir. 1950), aff’d 342 U. S. 451, 96 L. ed. 497, 72 S. Ct. 433 
(1952); Foremost Promotions v. Pabst Brewing Co., 15 
F. R. D. 128, 130, 19 F. R. Serv. 26b.31, Case No. 4 (N. D. 
111. 1953).

None of the matters argued by the School Board in this 
connection afford any defense for the Board’s failure to 
meet its constitutional obligations to bring about the elimi­
nation of racial segregation in the school system under 
Brown v. Board of Education, 347 U. S. 483 (1954); 349 
U. S. 294 (1955); and Cooper v. Aaron, 358 U. S. 1 (1958).



23

CONCLUSION

W herefore, for the foregoing reasons, appellees respect­
fully submit that the judgment of the district court should 
be affirmed.

Respectfully submitted,

L. Clifford Davis
403 East 9th Street 
Fort Worth, Texas

W. J. Durham
Universal Life Building 
2600 Flora Street 
P. 0. Box 641 
Dallas, Texas

Jack Greenberg
James M. Nabrit, III
D errick A. B ell, Jr.

10 Columbus Circle 
New York 19, New York

Attorneys for Appellees



la

A P P E N D I X

Transfer and Placement of Pupils to Schools Within an
Outside District, Transfer of Funds and Teachers

Article 2901a

Vernon’s Texas Civil Statutes 

(Approved May 23,1957)

Section 1. The Legislature finds and declares that the 
rapidly increasing demands upon the public economy for 
the continuance of education as a public function and the 
efficient maintenance and public support of the public school 
system require, among other tilings, consideration of a more 
flexible and selective procedure for the establishment of 
units, facilities and curricula and as to the qualification 
and assignment of pupils.

The Legislature also recognizes the necessity for a pro­
cedure for the analysis of the qualifications, motivations, 
aptitudes and characteristics of the individual pupils for 
the purpose of placement, both as a function of efficiency in 
the educational process and to assure the maintenance of 
order and good will indispensable to the willingness of its 
citizens and taxpayers to continue an educational system 
as a public function, and also as a vital function of the 
sovereignty and police power of the State.

Section 2. To the ends aforesaid, the State Board of 
Education shall make continuing studies as a basis for 
general reconsideration of the efficiency of the educational 
system in promoting the progress of pupils in accordance 
with their capacity and to adapt the curriculum to such 
capacity and otherwise conform the system of public educa­
tion to social order and good will. Pending further studies



2a

and recommendations by the school authorities the Legisla­
ture considers that any general or arbitrary reallocation 
of pupils heretofore entered in the public school system 
according to any rigid rule of proximity of residence or in 
accordance solely with request on behalf of the pupil would 
be disruptive to orderly administration, tend to invite or 
induce disorganization and impose an excessive burden on 
the available resources and teaching and administrative 
personnel of the schools.

Section 3. Pending further studies and legislation to 
give effect to the policy declared by this Act, the respective 
district and county Boards of School Trustees hereinafter 
referred to as “ Local Boards,” are not required to make 
any general reallocation of pupils heretofore entered in the 
public school system and shall have no authority to make 
or administer any general or blanket order to that end from 
any source whatever, or to give effect to any order which 
shall purport to or in effect require transfer or initial or 
subsequent placement of any individual or group in any unit 
or facility without a finding by the Local Board or authority 
designated by it that such transfer or placement is as to 
each individual pupil consistent with the test of the public 
and educational policy governing the admission and place­
ment of pupils in the public school system prescribed by this 
Act.

Section 4. Subject to appeal in the respect herein pro­
vided, each Local Board of School Trustees shall have full 
and final authority and responsibility for the assignment, 
transfer and continuance of all pupils among and within 
the public schools within its jurisdiction, and may prescribe 
rules and regulations pertaining to those functions. Subject 
to review by the Board as provided herein, the Board may 
exercise this responsibility directly or may delegate its 
authority to the Superintendent or other person or persons



3a

employed by the Board. In the assignment, transfer or 
continuance of pupils among and within the schools, or 
within the classroom and other facilities thereof, the fol­
lowing factors and the effect or results thereof shall be 
considered, with respect to the individual pupil, as well as 
other relevant matters: Available room and teaching capac­
ity in the various schools; the availability of transportation 
facilities; the effect of the admission of new pupils upon 
established or proposed academic program; the suitability 
of established curricula for particular pupils; the adequacy 
of the pupil's academic preparation for admission to a 
particular school and curriculum; the scholastic aptitude 
and relative intelligence or mental energy or ability of the 
pupil; the psychological qualification of the pupil for the 
type of teaching and associations involved; the effect of 
admission of the pupil upon the academic progress of other 
students in a particular school or facility thereof; the effect 
of admission upon prevailing academic standards at a par­
ticular school; the psychological effect upon the pupil of 
attendance at a particular school; the possibility or threat 
of friction or disorder among pupils or others; the possi­
bility of breaches of the peace or ill will or economic retalia­
tion within the community; the home environment of the 
pupil; the maintenance or severance of established social 
and psychological relationships with other pupils and with 
teachers; the choice and interests of the pupil; the morals, 
conduct, health and personal standards of the pupil; the 
request or consent of parents or guardians and the reasons 
assigned therefor.

In considering the factors and the effect or results thereof 
the Board or its agents shall not consider and shall not use 
as an element of its evaluation any matter relating to the 
national origin of the pupil or the pupil’s ancestral language.

Local Boards may require the assignment of pupils to 
any or all schools within their jurisdiction on the basis of



4a

sex, but assignments of pupils of the same sex among 
schools reserved for that sex shall be made in the light of 
the other factors herein set forth.

Section 5. Local Boards may, by mutual agreement, pro­
vide for the admission to any school of pupils residing in 
adjoining districts whether in the same or different counties, 
and for transfer of school funds or other payments by one 
Board to another for or on account of such attendance.

Section 6. Subject to the provisions of law governing 
the tenure of teachers, Local Boards shall have authority 
to assign and reassign or transfer all teachers in schools 
within their jurisdiction.

Section 7. A parent or guardian of a pupil may file in 
writing with the Local Board objections to the assignment 
of the pupil to a particular school, or may request by peti­
tion in writing assignment or transfer to a designated school 
or to another school to be designated by the Board. Unless 
a hearing is requested, the Board shall act upon the same 
within thirty (30) days, stating its conclusion. If a hearing 
is requested the same shall be held beginning within thirty 
(30) days from receipt by the Board of the objection or 
petition, at a time and place within the school district 
designated by the Board.

The Board must conduct such hearing and such hearing 
shall be final on behalf of the Board.

In addition to hearing such evidence relevant to the 
individual pupil as may be presented on behalf of the 
petitioner, the Board shall be authorized to conduct in­
vestigations as to any objection or request, including ex­
amination of the pupil or pupils involved, and may employ 
such agents and others, professional and otherwise, as it 
may deem necessary for the purpose of such investigations 
and examinations.



5a

Section 8. Any other provisions of law notwithstanding, 
no child shall be compelled to attend any school in which 
the races are commingled when a written objection of the 
parent or guardian has been filed with the Board, if such 
be the decision of the Local Board. If in connection there­
with a requested assignment or transfer is refused by the 
Board, the parent or guardian may notify the Board in 
writing that he is unwilling for the pupil to remain in the 
school to which assigned, and the assignment and further 
attendance of the pupil shall thereupon terminate; and 
such child shall be entitled to such aid for education as 
may be authorized by law.

Section 9. The action of the Board shall be final except 
that in the event that the pupil or the parent or guardian, 
if any, of any minor or, if none, of the custodian of any 
such minor shall, as next friend, file exception before such 
Board to the final action of the Board as constituting a 
denial of any right of such minor guaranteed under the 
Constitution of the United States, and the Board shall not, 
within fifteen (15) days reconsider its final action, an ap­
peal may be taken from the final action of the Board, on 
that ground alone, to the District Court of the county 
in which the School Board is located by filing with the 
Clerk within thirty (30) days from the date of the Board’s 
final decision a petition stating the facts relevant to such 
pupil as bearing on the alleged denial of his rights under 
the Constitution, accompanied by bond with sureties ap­
proved by the Clerk, conditioned to pay all costs of appeal 
if the same shall not be sustained.

Section 9A. Nothing in this Act shall affect any action 
heretofore taken by any school district in this State 
covering the subject matter of this Act.

Section 10. The provisions of this Act are severable, 
and if any section or provision of this Act shall be held



6a

to be in violation of the Constitution of Texas or of the 
United States, such decision shall not affect the validity 
or enforceability of the remainder of this Act.

Separate Schools 

Article 2900a

Vernon’s Texas Civil Statutes 

(Approved May 23, 1957)

Section 1. That no board of trustees nor any other 
school authority shall have the right to abolish the dual 
public school system nor to abolish arrangements for trans­
fer out of the district for students of any minority race, 
unless by a prior vote of the qualified electors residing 
in such district the dual school system therein is abolished.

Section 2. An election for such purposes shall be called 
only upon a petition signed by at least twenty per cent 
(20%) of the qualified electors residing in such district. 
Such petition shall be presented to such office or board 
now authorized to call school elections. Such an election 
may be set for the same date as the school trustee elec­
tion in that district, if such petition is filed within ninety 
(90) days to such date, otherwise the official or board shall 
call such an election within sixty (60) days after filing of 
such petition. The election shall be conducted in a manner 
similar to that for the election of school trustees. No 
subsequent election on such issues shall be called within 
two (2) years of a prior election held hereunder.

Section 3. School districts which maintained integrated 
schools for the 1956-1957 school year shall be permitted 
to continue doing so hereafter unless such system is 
abolished in accordance with the provisions of this Act.



7a

No student shall be denied transfer from one school to 
another because of race or color.

Section 4. Any school district wherein the board of 
trustees shall violate any of the above provisions shall 
be ineligible for accreditation and ineligible to receive 
any Foundation Program Funds during the period of time 
of such violation. Any person who violates any provision 
hereof shall be guilty of a misdemeanor and shall be fined 
not less than One Hundred Dollars ($100) nor more than 
One Thousand Dollars ($1,000).